Non-Contentious Probate Rules 1987

Year1987

1987 No. 2024 (L. 10)

SUPREME COURT OF ENGLAND AND WALES

The Non-Contentious Probate Rules 1987

Made 24th November 1987

Laid before Parliament 10th December 1987

Coming into force 1st January 1988

The President of the Family Division, in exercise of the powers conferred upon him by section 127 of the Supreme Court Act 19811, and section 2(5) of the Colonial Probates Act 18922, and with the concurrence of the Lord Chancellor, hereby makes the following Rules:

S-1 Citation and commencement

Citation and commencement

1. These Rules may be cited as the Non-Contentious Probate Rules 1987 and shall come into force on 1st January 1988.

S-2 Interpretation

Interpretation

2.—(1) In these Rules, unless the context otherwise requires—

“the Act” means the Supreme Court Act 1981;

“authorised officer” means any officer of a registry who is for the time being authorised by the President to administer any oath or to take any affidavit required for any purpose connected with his duties;

“the Crown” includes the Crown in right of the Duchy of Lancaster and the Duke of Cornwall for the time being;

“grant” means a grant of probate or administration and includes, where the context so admits, the resealing of such a grant under the Colonial Probates Acts 1892 and 19273;

“gross value” in relation to any estate means the value of the estate without deduction for debts, incumbrances, funeral expenses or inheritance tax (or other capital tax payable out of the estate);

“oath” means the oath required by rule 8 to be sworn by every applicant for a grant;

“personal applicant” means a person other than a trust corporation who seeks to obtain a grant without employing a solicitor, and “personal application” has a corresponding meaning;

“registrar” means a registrar of the Principal Registry and includes—

(a) in relation to an application for a grant made or proposed to be made at a district probate registry, and

(b) in rules 26, 41 and 61(2) in relation to a grant issued from a district probate registry, and

(c) in relation to rules 46, 47 and 48,

the registrar of that district probate registry;

“registry” means the Principal Registry or a district probate registry;

“the Senior Registrar” means the Senior Registrar of the Family Division or, in his absence, the senior of the registrars in attendance at the Principal Registry;

“statutory guardian” means a surviving parent of a minor who is the guardian of the minor by virtue of section 3 of the Guardianship of Minors Act 19714;

“testamentary guardian” means a person appointed by deed or will to be guardian of a minor under the power conferred by section 4 of the Guardianship of Minors Act 19714;

“the Treasury Solicitor” means the solicitor for the affairs of Her Majesty’s Treasury and includes the solicitor for the affairs of the Duchy of Lancaster and the solicitor of the Duchy of Cornwall;

“trust corporation” means a corporation within the meaning of section 128 of the Act as extended by section 3 of the Law of Property (Amendment) Act 19265.

(2) A form referred to by number means the form so numbered in the First Schedule; and such forms shall be used wherever applicable, with such variation as a registrar may in any particular case direct or approve.

S-3 Application of other rules

Application of other rules

3. Subject to the provisions of these Rules and to any enactment, the Rules of the Supreme Court 19656shall apply, with the necessary modifications, to non-contentious probate matters, save that nothing in Order 3 shall prevent time from running in the Long Vacation.

S-4 Application for grants through solicitors

Application for grants through solicitors

4.—(1) A person applying for a grant through a solicitor may apply at any registry or sub-registry.

(2) Every solicitor through whom an application for a grant is made shall give the address of his place of business within England and Wales.

S-5 Personal applications

Personal applications

5.—(1) A personal applicant may apply for a grant at any registry or sub-registry.

(2) Save as provided for by rule 39 a personal applicant may not apply through an agent, whether paid or unpaid, and may not be attended by any person acting or appearing to act as his adviser.

(3) No personal application shall be proceeded with if—

(a)

(a) it becomes necessary to bring the matter before the court by action or summons;

(b)

(b) an application has already been made by a solicitor on behalf of the applicant and has not been withdrawn; or

(c)

(c) the registrar so directs.

(4) After a will has been deposited in a registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the registrar so directs.

(5) A personal applicant shall produce a certificate of the death of the deceased or such other evidence of the death as the registrar may approve.

(6) A personal applicant shall supply all information necessary to enable the papers leading to the grant to be prepared in the registry.

(7) Unless the registrar otherwise directs, every oath or affidavit required on a personal application shall be sworn or executed by all the deponents before an authorised officer.

(8) No legal advice shall be given to a personal applicant by an officer of a registry and every such officer shall be responsible only for embodying in proper form the applicant’s instructions for the grant.

S-6 Duty of registrar on receiving application for grant

Duty of registrar on receiving application for grant

6.—(1) A registrar shall not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.

(2) Except with the leave of a registrar, no grant of probate or of administration with the will annexed shall issue within seven days of the death of the deceased and no grant of administration shall issue within fourteen days thereof.

S-7 Grants by district probate registrars

Grants by district probate registrars

7.—(1) No grant shall be made by a district probate registrar—

(a)

(a) in any case in which there is contention, until the contention is disposed of; or

(b)

(b) in any case in which it appears to him that a grant ought not to be made without the directions of a judge or a registrar of the Principal Registry.

(2) In any case in which paragraph (1)(b) applies, the district probate registrar shall send a statement of the matter in question to the Principal Registry for directions.

(3) A registrar of the Principal Registry may either confirm that the matter be referred to a judge and give directions accordingly or may direct the district probate registrar to proceed with the matter in accordance with such instructions as are deemed necessary, which may include a direction to take no further action in relation to the matter.

S-8 Oath in support of grant

Oath in support of grant

8.—(1) Every application for a grant other than one to which rule 39 applies shall be supported by an oath by the applicant in the form applicable to the circumstances of the case, and by such other papers as the registrar may require.

(2) Unless otherwise directed by a registrar, the oath shall state where the deceased died domiciled.

(3) Where the deceased died on or after 1st January 1926, the oath shall state whether or not, to the best of the applicant’s knowledge, information and belief, there was land vested in the deceased which was settled previously to his death and not by his will and which remained settled land notwithstanding his death.

(4) On an application for a grant of administration the oath shall state in what manner all persons having a prior right to a grant have been cleared off and whether any minority or life interest arises under the will or intestacy.

S-9 Grant in additional name

Grant in additional name

9. Where it is sought to describe the deceased in a grant by some name in addition to his true name, the applicant shall depose to the true name of the deceased and shall specify some part of the estate which was held in the other name, or give any other reason for the inclusion of the other name in the grant.

S-10 Marking of wills

Marking of wills

10.—(1) Subject to paragraph (2) below, every will in respect of which an application for a grant is made—

(a)

(a) shall be marked by the signatures of the applicant and the person before whom the oath is sworn; and

(b)

(b) shall be exhibited to any affidavit which may be required under these Rules as to the validity, terms, condition or date of execution of the will.

(2) The registrar may allow a facsimile copy of a will to be marked or exhibited in lieu of the original document.

S-11 Engrossments for purposes of record

Engrossments for purposes of record

11.—(1) Where the registrar considers that in any particular case a facsimile copy of the original will would not be satisfactory for purposes of record, he may require an engrossment suitable for facsimile reproduction to be lodged.

(2) Where a will—

(a)

(a) contains alterations which are not to be admitted to proof; or

(b)

(b) has been ordered to be rectified by virtue of section 20(1) of the Administration of Justice Act 19827,

there shall be lodged an engrossment of the will in the form in which it is to be proved.

(3) Any engrossment lodged under this rule shall reproduce the punctuation, spacing and division into paragraphs of the will and shall follow continuously from page to page on both sides of the paper.

S-12 Evidence as to due execution of will

Evidence as to due execution of will

12.—(1) Subject to paragraphs (2) and (3) below, where a will contains no attestation clause or the attestation clause is insufficient, or where it appears to the registrar that there is doubt about the due execution of the will, he shall before admitting it to proof require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present when the will was executed; and if the...

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